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Johnson v. Village of Bellwood

July 1, 2010

ARTHUR JOHNSON, JR., ET AL., PLAINTIFFS,
v.
VILLAGE OF BELLWOOD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' partial motion to dismiss. For the reasons stated below, we grant in part and deny in part the motion to dismiss.

BACKGROUND

Plaintiff Arthur Johnson, Jr. (Johnson), Plaintiff Brian L. Rodgers (Rodgers), and Plaintiff Aaron Curry (Curry) allege that on February 27, 2009, they parked their car in Bellwood, Illinois, and that while they were walking from their car, they saw a friend park a car a few blocks away. Plaintiffs allegedly were walking toward their friend's car when Defendant Kevin Barnett (Barnett), an off-duty police officer, noticed Plaintiffs near his truck. Barnett allegedly told Plaintiffs to get away from his truck and threatened to call the police. Plaintiffs allege that as they continued to walk down the street, they saw police cars approach. Rodgers and Curry then allegedly became separated from Johnson. Defendant Officer Lucero (Lucero) and Defendant Officer Hernandez (Hernandez) allegedly confronted Rodgers and Curry, telling them to lay face down on the ground and allow themselves to be handcuffed. Rodgers and Curry allegedly allowed themselves to be handcuffed. Barnett then allegedly slammed Rodgers' and Curry's heads on the ground, and Lucero allegedly stomped on Curry's hands and wrists. Rodgers and Curry were then allegedly raised to a standing position by Hernandez and Lucero while still handcuffed. Barnett then allegedly pointed his handgun at Rodgers and Curry, threatened to kill them, and struck Curry.

Johnson then allegedly rejoined Rodgers and Curry, and Barnett struck Johnson in the back of his head with a nightstick or similar blunt object. Barnett also allegedly attempted to choke Plaintiffs while they were handcuffed. Upon arriving at the police station, Defendant Officer Eduardo Morales (Morales) allegedly grabbed Johnson by the hair and slammed his head against the wall. Plaintiffs contend that they were subjected to such treatment because of their race. Defendant Commander Mike Herrera (Herrera) was allegedly not on the scene of any of the alleged misconduct, but Plaintiffs allege that Herrera failed to properly train and supervise the Defendant Officers.

Plaintiffs include in their complaint excessive force and failure to intervene claims brought pursuant to 42 U.S.C. § 1983 (Section 1983) relating to the excessive force allegedly used on Johnson (Count I), Section 1983 excessive force and failure to intervene claims relating to the excessive force allegedly used on Rodgers (Count II), Section 1983 excessive force and failure to intervene claims relating to the excessive force allegedly used on Curry (Count III), Section 1983 unlawful seizure claims relating to the arrest of Johnson (Count IV), Section 1983 unlawful seizure claims relating to the arrest of Rodgers (Count V), Section 1983 unlawful seizure claims relating to the arrest of Curry (Count VI), Section 1983 equal protection claims relating to the alleged misconduct toward Johnson (Count VII), Section 1983 equal protection claims relating to the alleged misconduct toward Rodgers (Count VIII), Section 1983 equal protection claims relating to the alleged misconduct toward Curry (Count IX), race discrimination claims brought pursuant to 42 U.S.C. § 1981 (Section 1981) relating to the alleged misconduct toward Johnson (Count X), race discrimination claims brought pursuant to Section 1981 relating to the alleged misconduct toward Rodgers (Count XI), race discrimination claims brought pursuant to Section 1981 relating to the alleged misconduct toward Curry (Count XII), selective enforcement claims relating to the alleged misconduct toward Johnson (Count XIII), selective enforcement claims relating to the alleged misconduct toward Rodgers (Count XIV), selective enforcement claims relating to the alleged misconduct toward Curry (Count XV), assault and battery claims relating to the alleged misconduct toward Johnson (Count XVI), assault and battery claims relating to the alleged misconduct toward Rodgers (Count XVII), assault and battery claims relating to the alleged misconduct toward Curry (Count XVIII), and an indemnification claim (Count XIX).

Defendants have moved to dismiss: (1) the race-based claims in Counts VII -XV, (2) all claims brought against Herrera, (3) all claims brought against Morales except in Counts I and XVI, (4) all claims brought against Hernandez in Counts XVI - XVIII, and (5) all claims brought against Lucero in Counts XVI - XVII.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that are "merely consistent with a defendant's liability... stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).

DISCUSSION

I. Race Claims (Counts VII through XV)

Defendants argue that Plaintiffs have failed to plead sufficient facts to state a claim relating to the equal protection Section 1983 claims and the Section 1981 claims, which are based on an alleged animus against Plaintiffs because of their race. Plaintiffs contend that Defendants are demanding overly detailed allegations relating to racial animus and are attempting to impose a heightened pleading standard for the race claims. However, even under the federal notice pleading standard, a plaintiff must offer sufficient allegations to plausibly suggest a right to relief. Iqbal, 129 S.Ct. at 1949. In the complaint, in regards to alleged racial motivation by Defendants, Plaintiffs allege only that they are "black male[s]" and allege in a conclusory fashion that their arrest "was motivated by race." (A. Compl. Par. 2-4, Ct VII-VIII Par. 43, Ct. IX-XI Par. 42-43). Such allegations are insufficient to plausibly suggest that Defendants were motivated in any way by Plaintiffs' race. Plaintiffs also contend that they did not include additional allegations concerning a racial motivation in the amended complaint because "[i]t is unclear what other facts plaintiffs could plead in good faith at this point that would make their claims more plausible without discovery...." (Ans. Dis. 4). Such an argument merely underscores that Plaintiffs lack a good faith basis at this juncture to bring such claims. Plaintiffs cannot raise a claim based on pure speculation, hoping later to find some basis for the claim in discovery. Plaintiffs also mention in their response to the motion to dismiss that they believe there are other facts that show racial animus that they did not include in the complaint. However, Plaintiffs cannot add additional facts to their complaint in a response to the motion to dismiss. Thus, since Plaintiffs have failed to plead sufficient facts to plausibly suggest that Defendants' alleged misconduct was motivated in any way by Plaintiffs' race, we grant the motion to dismiss the claims in Counts VII through XV.

II. Claims Brought Against Herrera

Defendants move to dismiss all claims brought against Herrera. Plaintiffs include only one reference to Herrera in the amended complaint. In the amended complaint, Plaintiffs allege that Herrera "has failed to train and adequately supervise [the Village of Bellwood's] police officers such as Officer Barnett, Officer Morales, Officer Lucero, and Officer Hernandez in order to prevent or avoid incidents similar to those described." (A. Compl. Par. 39). Defendants contend that, at best, such allegations merely suggest negligence on the part of Herrera. Negligent conduct is insufficient to support a Section 1983 claim. Lewis v. Anderson, 308 F.3d 768, 773 (7th Cir. 2002)("[n]egligence or even gross negligence does not suffice to give rise to liability under ยง 1983"). Plaintiffs contend that Herrera could be liable for the conduct of his subordinates if he knew about the alleged conduct and encouraged it, condoned it, or turned a blind eye toward the conduct. Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010)(stating that "[t]o be personally liable [a supervisor] must have condoned or acquiesced in a subordinate's unconstitutional" misconduct). However, Plaintiffs have included no allegations to suggest such actions by Herrera. Plaintiffs merely contend that Herrera failed to "train and adequately supervise" subordinates. (A. Compl. Par. 39). Such allegations are not sufficient to state a claim. Iqbal, 129 S.Ct. at 1949. Plaintiffs also contend that it is the custom and practice of officers to engage in misconduct. However, such allegations fall short of plausibly suggesting that Herrera knowingly acted with deliberate indifference or condoned the ...


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